Experimento jurisdicional de reestruturação: descrição e justificação

Abstract

The present work examines general aspects of judicial experimentation within the scope of structural reforms, for the purpose of offering a theoretical contribution concerning its adequate description and its compatibility with brazilian law. Although it’s becoming more frequent to describe structural reform as “experimental” or “experimentalist”, understanding exactly what that means doesn’t seem to raise the same level of academic’s attention, notwithstanding the lack of previous familiarity with this kind of terminology. To deal with this apparent mismatch, we try to answer two central questions: (i) Is the available description of judicial experimentation within the scope of structural reforms sufficient and adequate? (ii) Can the Brazilian Judiciary design this kind of experimental regulation? In order to deliver the pursued answers, firstly, we break down the studied object into its two analytical parts (structural reform and experimental regulation), each of which subject to a specific critical-descriptive scrutiny, designed to address theoretical problems of distinctive natures (multitude and scarcity of available characterizations). In the light of the proposed descriptive improvements, we proceed inquiring if the judicial experimentation within the scope of structural reform is compatible with brazilian law. Due to the recognition of discursive constraints that could hinder a comprehensive compatibility check, without a collateral sacrifice of analytical depth and consistency, we’ve settled on offering two starting argumentative inputs on the matter. First, we checked the compatibility of the studied object with the legal certainty and the equality principles. Second, we pondered if brazilian procedural law admits the measure of cognitive flexibility that experimentation requires. In conclusion, we argue the descriptive and prescriptive insufficiency of the available knowledge regarding judicial experimentation within the scope of structural reform. Finally, we uphold, in accordance with the previously defined limits, the compatibility of our studied object with brazilian law.